Regulatory Policy

The Dangers of Conservative ‘Antitrust Revival’

Sen. Josh Hawley (R-MO) speaks during a hearing of the Senate Judiciary Subcommittee on Privacy, Technology, and the Law in Washington, D.C., April 27, 2021. (Al Drago/Pool via Reuters)
Republicans should be wary of the massive expansion of government that increasingly popular anti-monopoly sentiments would entail.

Rachel Bovard has a well-written piece in The American Conservative that argues for those of us on the right to rediscover our true tradition of using antitrust law to stand up to powerful concentrations of market power. By the time you finish reading her piece, it will seem as if aggressive antitrust action is as Republican as splitting rails and running an underground railroad.

But conservatives should reject her approach. Throughout her piece, Bovard focuses solely on a handful of Big Tech companies for their content decisions that anger conservatives. On this narrow concern, she endorses a purported return to a conservative stand against bigness that would, if enacted, mean the end of capitalism as we know it in America.

If that sounds a bit hyperbolic, consider the two leading antitrust bills in the Senate today.

One of them, authored by Senator Josh Hawley, would outlaw all mergers and acquisitions for every company with a market cap over $100 billion. That’s roughly a Who’s Who of American capitalism, almost 80 companies in all. So conservatives should go along with ossifying Procter & Gamble, Exxon-Mobil, Boeing, CISCO, AT&T, Eli Lilly, and Texas Instruments because we’re upset that Facebook and Twitter no longer let Donald Trump post?

Senator Hawley would also lower the threshold for prosecution under existing federal antitrust laws, replacing the prevalent “consumer harm” standard with one that “protects competition.” This would turn antitrust law into a blunderbuss aimed by failing competitors against companies that do a better job of serving consumers.

Worse, by jettisoning the consumer-welfare standard that has anchored antitrust law for almost a half century, American businesses of all sorts would find themselves in a perpetual government choke hold. Any strong company could be accused at any moment of being anticompetitive.

Hawley would also require companies that lose federal antitrust lawsuits to “forfeit all their profits resulting from monopolistic conduct.” This would be a corporate death penalty. With punishment that draconian, expect corporate executives every morning to politely ask regulators and the politicians who control them how high they should jump. If Hawley’s bill is to strike back at “woke” corporations, then his bill is an own-goal because wokeness would virtually become legally mandated.

And finally, Hawley would give the Federal Trade Commission new power to designate and regulate “dominant digital firms” in different online markets. In the name of opening up more space for conservative voices, Hawley would subject social-media companies to regulation by Biden-appointed Democrats. If you dislike the restrictive view some social-media companies take toward conservatives, wait until you put them in a state of perpetual investigation and potential prosecution by woke politicians and regulators in Washington, D.C.

And this radical proposal is the Republican bill. While not likely to pass, it does a good job of putting a frame of reasonableness around the even more radical Democratic antitrust bill. Senator Amy Klobuchar’s antitrust bill would enact so many potential ways to prosecute, abuse, and torment companies that government would, in essence, become the real board of directors of every major company in America. If your quest, as a conservative, is to rediscover the ethos of the Republican past, embracing the socialization of virtually every business decision is a strange way to do it.

Again, if this sounds hyperbolic, consider the friendly overtures conservatives such as Senator Ted Cruz make toward antitrust actions and neo-Brandeisians such as Lina Khan, soon to be on the Federal Trade Commission. It will only take a few Republicans to enact these radical revisions of American capitalism into law.

Bovard’s piece also seems to ignore that the new reality, that the bigness of Google, Facebook, et al., is the result of network effects, in which the more people who use a service, the more valuable it is. Consumers can destroy these companies any time they want with a mere click. Bovard asks: “Will 10 Googles be any better than one? The answer is yes.” Actually, for the American consumer, the answer would be no. No one wants ten Googles. That is why consumers prefer a service that network effects have given unparalleled reach. Now, perhaps there is a problem here. Perhaps network effects present a serious issue that deserves a new line of thinking. But treating a free service that anyone can leave with a click as if it were the Standard Oil Company is not a thoughtful response. She might argue that consumer choice is an imaginary one regarding Google or Facebook, but it is the consumers themselves who made it so.

To be fair, there is a lot to appreciate about Rachel Bovard’s piece. I especially appreciate the thoughtful and accurate way she described the antitrust scholarship of my father, Judge Robert Bork. She accurately describes his concern with a panoply of consumer benefits, not just price, in antitrust. She notes his caution about an “economic extravaganza” in which competing economists spin out fantasy projections in court. And she is correct when she notes that Judge Bork modified antitrust doctrine in a way that narrowed its uses, but strongly believed there was a place for it.

All true. But momentum is gaining in the conservative movement to pass one of the most radical revisions of the American economy ever attempted. And if this radical altering of the relationship between public and private sectors succeeds, it will be because of a knee-jerk reaction by conservatives over social-media posts.

Robert H. Bork, Jr. is president of the Bork Foundation and Antitrust Education Project and the publisher of a new edition of his father’s seminal work, The Antitrust Paradox, A Policy at War with Itself.

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